CHHAYA BARJATYA Vs. RAHUL BARJATYA

JUDGEMENT

(1.) FEELING aggrieved by the judgment dated 6.12.2013 passed by the District Judge, Family Court, Gurgaon whereby the petition filed by the husband -respondent under Sections 17 and 25 read with Section 6 of the Guardians and Wards Act, 1890 (in short "the Act") for the custody of minors, namely, Uday Barjatya (son) and Rupal Barjatya (daughter) was allowed, the wife -appellant has approached this Court by way of instant appeal.

(2.) A few facts relevant for adjudication of the instant appeal as narrated therein may be noticed. The marriage of the parties was solemnized on 21.1.1997 at Jaipur according to Hindu rites and ceremonies. Out of the said wedlock, two children, namely, Uday Barjatya (son) and Rupal Barjatya (daughter) were born on 12.11.2000 and 23.10.2006, respectively who had been residing with the appellant in Bombay since 9.5.2012. When the respondent was away to Jaipur, the appellant took the children along with her to Bombay without informing him along with her belongings and valuables. The son and the daughter were studying in school at Delhi and Gurgaon respectively upto 9.5.2012. The parents of the respondent were also residing with him in House No. EG1/8, Garden Estate, Gurgaon. They had love and affection towards the minors. The minor son was going in play school, i.e. Pallavan School, Gurgaon in the year 2004. He was admitted to football coaching in Garden Estate, Gurgaon and was pursuing taekwondo till the age of 10 years and was undergoing professional training for the same. In the year 2010, he also participated in Delhi State Taekwondo Championship. The daughter of the respondent was admitted in Anant Play School at Gurgaon in the year 2009. She was admitted for swimming coaching at Garden Estate, Gurgaon. In the year 2011 she was admitted to Heritage School, Gurgaon. The respondent was doing the business of Handicraft and Jewellery at Jaipur. His annual income was Rs. 4.5 to 5 lacs. Besides this, the respondent had a house at Jaipur and his parents had a house at Gurgaon. The respondent was residing with his parents at Gurgaon for the last 18 years. At Gurgaon, the respondent had been bearing all the educational and other expenses of the children and the wife with the support of his parents. The only problem in the married life was that the wife used to interact with her parents and when the parents of the appellant used to visit her at Gurgaon, they instigated her on one pretext or the other. On 20.1.2012, the appellant packed all her bags without informing the respondent and his parents and kept the same in the family car and picked up both the children from bus stop at Gurgaon and took them away along with her parents and brother who came to Jaipur to act as conspirators. The parties agreed to admit the son in Sriram School, Gurgaon and filled various forms for the said admission. On 20.1.2012, the school authorities of Sriram School informed the respondent that his son would get a mail for an interview. The appellant along with children with great reluctance agreed to come back to Gurgaon on 20.1.2012 at 11.30 PM. She did not lodge any report with the police or any other authority regarding physical torture on 20.1.2012 but later on she visited Government Hospital, Gurgaon to create a false evidence without informing the police about any assault. However, when she returned to the respondent at Gurgaon on 20.1.2012, she apologized for her conduct. On 23.3.2012, the brother of the appellant came to Gurgaon and started abusing the respondent in filthy language in front of the children. On 12.5.2012, the appellant filed a complaint under the Domestic Violence Act against the respondent and his parents in Bombay. In March, 2013, she filed a divorce petition in Bombay. The children had been living with the appellant in Bombay in a small apartment where there had been a lot of dispute between the appellant and her parents and brother. The son of the respondent expressed in his own hand writing vide letters dated 9.2.2013 and 17.3.2013 that he did not want to live in Bombay as he had been facing daily abuses (verbal and physical) from his maternal uncle, maternal grandfather and his mother (appellant herein). He even told that his mother had not been taking care of them and had been taking alcohol and smoking in their presence. Uday Barjatya had repeatedly fallen sick and was taken to hospital for treatment on account of violence inflicted upon him by his maternal uncle. Accordingly, the respondent filed a petition under Sections 17 and 25 read with Section 6 of the Act for the custody of the minors. Upon notice, the appellant filed a written statement controverting the averments made in the petition. It was pleaded that after the marriage the behaviour of the respondent was not good as he was not happy with the marriage and told that he was forced into marriage. In the month of March, 1997, they had gone for honeymoon to Switzerland where he left the appellant in the middle for a small misunderstanding and went to the hotel alone where they were staying. In the year 2000, when the appellant was pregnant, the respondent told her that he wanted a boy and if there was a girl, he would not pay for the expenses and would not take care of the child. After the birth of the male child, there was no change in the behaviour of the respondent and he never gave any money to the appellant for her maintenance or the maintenance of the child. Her parents used to give money for her maintenance. When the appellant was pregnant for the second time, the respondent told that he did not want the second child. However, the appellant gave birth to a female child on 23.10.2006. The respondent wanted a male child on second time also and was not happy with the birth of female child. He did not pay even single penny for medical expenses at the time of birth of the female child. In March, 2012, their son had gone to attend a birthday party and he came late upon which the respondent beat him up with a hanger and threatened him as a result of which he fell down. Even the appellant was not allowed to go to her parents' house. She used to visit there after 2 -3 years. Her parents and other family members came to meet her at Gurgaon on 31.12.2011. They were not allowed to enter the house. The appellant was allowed to meet them outside the house on the other side of the road at a far away place. When the appellant returned after meeting her parents, the respondent got angry and gave beatings in front of their children. On 19.1.2012, the same incident was again repeated. On 20.1.2012, the appellant went to Hospital at Gurgaon for treatment and the doctors gave tetnus injection. On 20.1.2012, the appellant along with her children left the house of the respondent for going to her parent's house at Jaipur and when they were on the way to Jaipur, the respondent gave a call saying that their son had got a call for admission in Sriram School, Gurgaon. For the future of the son, the appellant returned back to Gurgaon. On reaching Gurgaon, the respondent told that he was telling a lie as no call was received from the said school. One another incident had taken place when the son had returned from Delhi. The respondent hit him again and when the appellant intervened and asked as to why he was beating the child, he said that he was not hitting her and was hitting only the child. Her brother along with his family had come to Gurgaon in March 2012. When they were at the door of the house, the respondent abused them and did not allow them to enter the house. The appellant went out with them and stayed with them at night. In the morning when she came back, the respondent started abusing her. After sometime her brother along with his family came to the appellant to speak to the respondent about his behaviour, where he abused them and told them to get lost. Her brother asked the respondent that they had come to the house of his sister upon which the respondent took out a knife from the kitchen and told the appellant to call her brother out of the colony and they would show him what he could do to him. She requested her brother not to go outside to meet the respondent. Even the appellant was not allowed to watch the TV. On 9.5.2012, the appellant along with her children left for her parent's house in Bombay. Before leaving, she made a complaint to the police at Gurgaon to the effect that she was leaving the house because of the ill treatment given to her and her children by the respondent. At that time, the respondent was at Jaipur. The appellant's parents were also there. The respondent called them and abused them. He called her mother outside the house and put in the car and drove away the car. His mother was also sitting in the car. The respondent and his mother scolded her mother in the car and then they went to their house at Jaipur. Thereafter, the appellant went to the police in Bombay and made a complaint. The appellant also filed a case under the Domestic Violence Act. On 22.5.2012, the respondent along with his sister and brother -in -law came at Bombay and seeing them, the appellant got so scared and her brother had to call the police. The respondent was given visitation rights by the Court. As and when he exercised his visitation rights, he brain washed the children. On 15.3.2013, the respondent took away the children. On the next day, her son called her in the morning and started abusing her on the phone. He even called up his maternal uncle and abused him. After these calls, the appellant and her brother went to the police station and lodged a complaint. They also moved an application for modification of the order regarding visitation rights. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial court framed the following issues: - -

(3.) THE trial court on appreciation of evidence led by the parties decided issue No. 1 in favour of the respondent holding that the custody of the children with the respondent would be for their welfare. Accordingly, the trial court vide judgment dated 6.12.2013, allowed the petition holding the respondent entitled to the custody of the children. However, the appellant was given visitation rights to meet the children. Hence, the present appeal.